Toxic metals in baby food causation trial

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Last week, a judge in California denied a motion by a group of baby food manufacturers that sought to exclude expert testimony regarding a link between heavy metals in baby foods and the development of autism spectrum disorder and ADHD.

This ruling, in NC v. Hain Celestial, et al. (Superior Ct. of Cal., Los Angeles Cnty. – 21STCV22822), could have major implications for future toxic baby food lawsuits and it means we could have the first baby food autism trial this summer.

If you have been waiting on the sidelines waiting to see if what you were hearing about the viability of a baby food autism lawsuit was real, this is a post you want to digest. Because this is the biggest development in the history of the baby food toxic metal litigation.

NC v. Hain Celestial Group, et al. is a toxic baby food lawsuit filed in the Superior Court of California for Los Angeles County. The minor plaintiff (“NC”) in the case has been diagnosed with autism spectrum disorder (ASD) and attention deficit hyperactivity disorder (ADHD).

The lawsuit alleges that these disorders were caused by NC’s consumption of heavy metals (lead, arsenic, and mercury) contained in baby food products manufactured by the defendants.

The manufacturing defendants named in the case include Hain Celestial Group Inc. (maker of Earth’s Best Organic), Beech-Nut Nutrition Co., Nurture, Inc., Plum Organics, Gerber Products Company, Walmart, Inc. (maker of HappyBaby brand products), and Sprout Foods, Inc. The complaint also named Ralphs Grocery Company as an additional defendant.

The defendants deny that their baby food products contained harmful levels of heavy metals (this claim would appear to be at odds with information revealed in the recent congressional investigation). More convincingly, the defendants also argue that even if their baby food contained heavy metals, consuming these metals could not have been the cause of the plaintiff’s autism or ADHD. Defendants contend that autism and ADHD are genetic conditions that develop before birth and do not relate to the consumption of metals in food.

To establish product liability claims, all plaintiffs must present expert testimony showing a scientific basis for their allegations of causation. In other words, plaintiffs need scientific “proof” showing that the products at issue caused their injuries. Scientific evidence as to causation comes in the form of opinion testimony from expert witnesses. The courts have gatekeeping responsibility to ensure that expert causation opinions presented to a jury are not based on a “leap of logic or conjecture.”

The allegation at the core of the plaintiff’s lawsuit is that the consumption of high levels of heavy metals (arsenic, lead, and mercury) in baby food products can potentially cause autism or attention deficit disorder. This is a controversial position because the scientific evidence linking heavy metal exposure to the development of autism and ADHD has only recently emerged and it challenges the conventional thinking that these neurologic conditions can only be caused by genetics.

In recognition of this controversy, the court in NC v. Hain Celestial convinced the parties to present their expert opinion evidence and seek a preliminary ruling from the court as to whether the plaintiff’s causation evidence would be admissible under California’s legal standard.

In response, the plaintiff retained four experts who each presented written opinions, appeared for depositions, and testified in evidentiary hearings. Plaintiff’s experts included 2 epidemiologists, a neurotoxicologist, and a pediatric neurologist. The defendants countered with their expert, Dr. Eric Fombonne, to challenge the basis of the plaintiff’s expert opinions.

The defendant’s expert, Dr. Fombonne, challenged the validity of the scientific opinions submitted by the plaintiff’s 4 experts. Specifically, Dr. Fombonne identified what he claimed were 4 analytical gaps in the opinions offered by the plaintiff’s experts:

1. Speculative conclusions based on studies that lack “temporality”
2. Improper reliance on behavioral questionnaires
3. Lack of consistent association
4. Failure to account for what is known about autism

In a lengthy and detailed opinion, Judge Amy D. Hogue denied the defendants’ motion seeking to exclude the plaintiff’s expert testimony based on unreliability. Judge Hogue considered each of the 4 analytical gaps identified by defense expert Dr. Fombonne. Each of these points was found to be unpersuasive and failed to convince the court that the plaintiff’s expert opinions should not be presented to the jury.

After addressing each of the 4 analytical gaps asserted by defense expert Dr. Fombonne, Judge Hogue denied the defendants’ motion to exclude the expert testimony presented by the plaintiff. In Judge Hogue’s view, Dr. Fombonne and the plaintiff’s experts simply have two competing and equally valid scientific opinions and it is not the role of the courts to resolve scientific debates.